“Settled Intention” to Treat as a Child

December 21, 2018

Under the Succession Law Reform Act (the “Act”), dependant children who are not adequately provided for by a deceased parent can apply to the Court for redress. This entitlement extends to any person who fits into the definition of “child” under the Act, including any person to whom the deceased had demonstrated a “settled intention” to treat as a child of his or her family.

How can a person establish that a deceased had a settled intention to treat someone as a child of his family? While there is no definitive test, case law has established that there are elements of a relationship that are indicative of a “settled intention” by a deceased. In the case of Pigott v. Pigott Estate, the Court found recognized the following five elements, at least one of which is required to establish a settled intention by a deceased:

Cohabitation with the child.

Treatment of the child on an equal footing with the deceased’s own children.

Decision-making power with respect to the child’s name, schooling, and discipline.

While the Court in Pigott stated that at least one of these elements is necessary, no Ontario Courts have expressly followed that ruling, and the existence of one or more factors may not be determinative of whether the intention existed.

This is evidenced in the case of Stajduhar v Wolfe[2] where, despite cohabitation and financial support, the Superior Court of Justice held that the deceased did not have a settled intention to treat the daughter of his spouse as his own daughter. The Court indicated that the deceased had never introduced the child to any other members of his family, had never made her out to be his daughter to any person and he specifically excluded her from his will despite including his other children[3].

Guidance can also be found within the family law context, where questions of child support arise. In the case of Spring v. Spring, the Court states:

“When intention is in dispute, each case will be decided on its own attendant circumstances…Material circumstances include: the place where the child lived; the manner in which the expenses of the child were discharged; the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline.[4]

In Robinson v. Birch[5], the Superior Court of Justice found that a step-father had shown a settled intention to treat the daughter of his spouse as a child of his family in the context of the Family Law Act, which contains definitions of “parent” and “child” almost identical to the ones found in the SLRA. The factors relied upon were:

He lived with and supported the child as part of their relationship;

He disciplined the child;

He took the child to school;

He represented himself as the child’s step-father on school documents;

These cases show that the analysis of whether the deceased demonstrated a “settled intention” to treat a person as a child of his or her family will be dependent largely on the particular facts of each case. It is clear, however, that Courts will consider and weigh various, similar factors in its analysis and that none of these factors, in isolation, are determinative.